Danny L. Ball v. Larry Norris ( 1996 )

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No. 94-4054EA
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Danny L. Ball; *
*
Plaintiff-Appellant, *
*
John L. Grigsby, *
*
Plaintiff, *
*
v. *
*
Larry Norris, Director, *
Arkansas Department of * Appeal from the United States
Correction; PHP Healthcare, * District Court for the Eastern
Inc.; Dr. Jackie Wade, * District of Arkansas.
Diagnostic Unit, Arkansas *
Department of Correction; Dr. * [UNPUBLISHED]
Jay Owens, Cummins Unit, *
Arkansas Department of *
Correction; Delois Ford, Unit *
Nurse, Originally sued as "Mrs. *
Ford"; Sue Guirl, Warden; Lt. *
Roger Ferrell, Mississippi *
County Work Release Center, *
Arkansas Department of *
Correction, *
*
Defendants-Appellees. *
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Submitted: May 16, 1996
Filed: July 1, 1996
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Danny L. Ball appeals the dismissal of his 42 U.S.C. § 1983 action.
Having reviewed de novo the evidence presented at a pretrial evidentiary
hearing to determine whether Ball's case would survive a motion for
judgment as a matter of law, see Hobbs v.
Lockhart, 46 F.3d 864, 868 (8th Cir. 1995), we conclude Ball's evidence did
not establish a jury question on his claim the defendants acted with
deliberate indifference to Ball's serious medical needs when they delayed
sending him to an oral surgeon. See Estelle v. Gamble, 429 U.S. 97, 106
(1976).
Ball failed to show any personal involvement on the part of the
Arkansas Department of Correction employees, PHP Healthcare, Inc. (PHP),
and PHP Nurse Delois Ford in denying or delaying his medical treatment.
Ball cannot predicate his Eighth Amendment claim against these defendants
on a risk of harm of which they were unaware or on a respondent superior
theory. Boyd v. Knox, 47 F.3d 966, 968-69 (8th Cir. 1995).
Ball's testimony established he saw PHP Dentist Jackie Wade for tooth
pain only once. Wade prescribed penicillin for two abscesses, and Ball did
not seek treatment again until several months later. At that time, PHP
Dentist Jay Owens told Ball he had two abscesses and an impacted wisdom
tooth, prescribed penicillin and pain relievers, and ultimately referred
Ball to an outside oral surgeon who removed six of Ball's teeth. Ball
produced no evidence that Wade or Owens intentionally delayed Ball's
treatment or his referral to a specialist. See Estelle, 429 U.S. at 104-
05. The only damage Ball attributed to the delay in his dental surgery was
pain, and Ball's testimony showed his pain relief was compromised because
he shared his pain medication with another inmate. Further, at oral
argument, Ball's counsel conceded that Ball would have been pain free if
he had taken all of his pain medication. Thus, Ball's Eighth Amendment
claim fails because Ball did not suffer any detrimental effects from the
delay in medical treatment. See Beyerbach v. Sears, 49 F.3d 1324, 1326-27
(8th Cir. 1995).
We affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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